R v Behrman

• Jurisdiction: South Africa
• Citation: 1957 (1) SA 433 (T)

R v Behrman
1957 (1) SA 433 (T) [*]

1957 (1) SA p433

Citation	1957 (1) SA 433 (T)
Court	Transvaal Provincial Division
Judge	Bresler J and Williamson J and Hiemstra AJ
Heard	March 26, 1956; March 27, 1956
Judgment	May 14, 1956

Flynote : Sleutelwoorde

A Criminal procedure — Evidence — Dictaphone evidence — When admissible — Procedure to be followed to make such evidence admissible.

Headnote : Kopnota

Where evidence had been admitted of tape recording and electro transcribed copies or 'dubs' and there was not correspondence between the original and the 'dubs' or between the various transcripts of the 'dubs', in an appeal from a conviction,

Held, per BRESLER, J., WILLIAMSON, J., concurring, HIEMSTRA, A.J., B dissenting, that the evidence was admissible.

The procedure to be followed in order to make dictaphone evidence admissible defined per HIEMSTRA, A.J.

Case Information

Appeal from a conviction in a magistrate's court. Facts not material to this report have been omitted.

N. E. Rosenberg, Q.C. (with him L. Pinshaw, Q.C. and L. R. Dison), for the appellant: (1) The transcripts made by the police officers after playing and replaying the records were wrongly admitted by the Court a quo. The transcribers were not experts possessing special experience and special knowledge. As to what constitutes an expert, see Phipson, 9th D ed., p. 400; Hailsham, Vol. 13, p. 603. The transcripts were inadmissible. R v Koch, 1952 (3) SA 26, goes too far. See also Wigmore, Vol. II, p. 791. Appellant was materially prejudiced, R v Saffy and Bennett, 1944 AD 391; R v Patel, 1946 AD 903; R v Kirsten, 1950 (3) SA 659; R v H., 1948 (4) SA 154; R v Krasner, 1950 (2) SA 475; R v Bezuidenhout, 1954 (3) SA 188. Where there is E an irregularity, the onus is on the Crown to show that despite it a reasonable Court would inevitably have convicted, R v Saffy and Bennett and R v H., supra. (2) The evidence of the witness Wazar accepted by the magistrate was demonstrably false in material respects. This amounts to a misdirection, R v Bezuidenhout and R v Saffy and Bennett, supra. Appellant was materially prejudiced by this F misdirection. (3) The Court wrongly prevented legitimate cross-examination of Capt. Pretorius on a relevant point. The conviction must therefore be set aside, Distiller's Korporasie Bpk v Kotze, 1956 (1) SA 357; R v Linder, 1942 (2) P.H. H114; May on Evidence, 3rd ed., pp. 308 - 309. C

H. J. Beyers, for the Crown.

Cur. adv. vult. G

Postea (May 14th).

Judgment

H Bresler, J.:

The appellant was convicted by the Court of a regional magistrate for a contravention of sec. 2 (b) of Act 4 of 1918 and sentenced to six months' imprisonment with compulsory labour. The charge, including the alternative, reads as follows:

1957 (1) SA p434

Bresler J

Main Count:

Contravening sec. 2 (b), Act 4 of 1918.

That the said accused is guilty of the offence of c/s 2 (b) of Act 4/1918 in that upon or about the 15th April, 1955, and at or near Johannesburg in the regional division of South Transvaal he did wrongfully, unlawfully and corruptly give or offer a gift or consideration to wit money in the sum of £200 to Capt. R. J. Pretorius, A a member of the South African Railways and Harbours Police Force, as an inducement or reward for doing acts in relation to his principal's affairs or business, to wit, to hand over to him the accused, certain books or documents seized by the Railway Police; to obliterate certain marks on articles so seized and to accept from the accused certain articles for the purpose of being substituted for similar articles so seized in connection with alleged criminal charges of theft or receiving stolen property well knowing it to have been stolen then being investigated by the said Capt. R. J. Pretorius against H. Wazar and three others, the investigation of which allegations being of the B affairs or business of the principal of the said Capt. Pretorius.

Alternatively:

Bribery.

That the said accused is guilty of the crime of bribery in that upon or about the 15th day of April, 1955, and at or near Johannesburg in the regional division of South Transvaal he did wrongfully, unlawfully and corruptly offer to one Capt. R. J. Pretorius, a member of the South African Railways and Harbours Police Force and as such an official of C the State an unauthorised payment or gift, to wit money in the sum of £200, as a fee, gift or reward to influence the said Capt. Pretorius in the performance of his duties as such official by inducing or attempting to induce him to hand over to him the accused, certain books and documents seized by the Railway Police; to obliterate certain marks on certain articles so seized and to accept from the accused certain articles for the purpose of being substituted for similar articles so seized in connection with alleged criminal charges of theft or receiving stolen property well knowing it to have been stolen then being D investigated by the said Capt. Pretorius against W. Wazar and three others, the investigation of which allegations being of the affairs or business of the principal of the said Capt. R. J. Pretorius.

[The learned Judge then dealt with the events leading up to the prosecution and the evidence of certain witnesses. He then dealt with a submission by the appellant that the magistrate had erred in not E permitting cross-examination of Capt. Pretorius on one circumstance of the case. The learned Judge then continued.]

Now

'the disallowance of proper questions sought to be put to a witness by cross-examining counsel is an irregularity which entitles the party represented by the cross-examiner to relief from a Higher Court, unless that Court is satisfied that the irregularity did not prejudice him.' F (Distillers Korporasie SA Bpk. v Kotze, 1956 (1) SA 357 (AD)).

In the present case I do not think that it can be said that the appellant has suffered actual prejudice.

This brings me to the question of the transcripts. In R v Koch, 1952 (3) SA 26 (T), it was held that dictaphone evidence was admissible and that

G 'if the recording could be done so as to be audible to the Court and the parties there is in my opinion no reason why the judicial officer should not himself listen to the recording instead of being told by some other person what he has heard. If that were done there can in my opinion be no doubt that a witness could be permitted to testify whether any particular person with whom he is acquainted . . ..'

The Court proceeded to say this:

H 'If the record can be heard by one person only at one time it is in my...